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What to do?

HRratraceHRratrace 49 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
We have an EE who was hired November 2003. Very shortly after being hired, she filed a WC claim for Carpel Tunnel. She has been out repetetively on WC since then. She had successful surgery on both wrists this summer, and after a very long time of being out b/c we had no light duty work available, she finally was released to full duty w/o restrictions and came back to work. Her job requires repetitive motion, so soon after being back a little while she started complaining once again of pain in her wrists. She's been out for 6 weeks now b/c she has a one hand restriction that we can't accomodate. Dr. says she can't have any repetative motion of left hand/wrist/arm. She has not been here a year yet, so she's in no way covered by FMLA. Can we ask her to find another line of work since we have nothing she could ever do that wouldn't require repetative motion? We're a manufacturing company, and all of the positions she's qualified for require repetative motion.
If we let her go, can she sue us for retaliation?
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Comments

  • 7 Comments sorted by Votes Date Added
  • Don DDon D 9,834 Posts
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    Not knowing TN comp law, my response will be as if you lived in MS. I would terminate her. We are the same type of environment yours is. I have several people who have had the same surgery. If one of them had a restriction of that nature, we could not use her any longer. There is no such thing as WC retaliation in MS. Even if there were, this would not be retaliation for having filed a comp claim. It would simply be terminating an employee who could not perform the essential functions of the job. And it's highly unlikely that pain following carpal tunnel release surgery would be stretched to ADA protection. Your carrier may have to settle up; but, in the long run, you'll be better off. Terminate and move on. And I would not 'suggest she find another line of work'. Let that be her conclusion to reach or not reach.
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  • HRratraceHRratrace 49 Posts
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    Thanks, Don. That is what I was thinking, and that is the direction that we will take.
    I appreciate your help.
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  • awilliamsawilliams 258 Posts
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    When evaluating ADA claims, remember that first and foremost the worker must be qualified to perform the major functions of the job with or without a reasonable accommodation. A person who can no longer do repetitive motions, which is the major function of the job, and you cannot accommodate that, is no longer qualified, pure and simple. I assume you have satisfied you workers' comp obligations. Therefore there should not be any problems when you terminate.


    Anne Williams
    Attorney Editor
    M. Lee Smith Publishers, LLC
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  • Don DDon D 9,834 Posts
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    I doubt it would even rise to the level of an interractive discussion. First I would want to know what major life activity is being impacted by the inability to do repetitive motions in a manufacturing environment. I suspect the answer is 'none'. It cannot be shown that the major life activity being impacted is the ability to work since only 'manufacturing jobs requiring repetitive hand motion' is the only thing impacted. work is a major life activity...not working in a particular job in a particular environment.

    My point is, I don't think I would even go in the direction of applying the 'qualified individual' test, and certainly not the 'with or without accommodation test'.

    ADA is a non-issue unless this person flat CANNOT WORK, and then as you say, they are not a qualified individual under the definition.

    Sorry to be so anal. I typically can't tolerate anal processes.
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  • awilliamsawilliams 258 Posts
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    I basically agree with you Don. My point was that you should not always assume that you have to accommodate - sometimes the person flat out is no longer qualified for the position.

    Anne Williams
    Attorney Editor
    M. Lee Smith Publishers, LLC
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  • mrbillmrbill 89 Posts
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    I have 3 comments, having had similar cases.
    1. Being a new employee, did you contest her claim ? Sounds like she walked in with the problem. Granted, WC cases are tough to win.
    2. She is on WC, and stays there until you settle etc. Separate from the terminate issue.
    3. No reason why you cannot terminate her, based on what you wrote.
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  • HRratraceHRratrace 49 Posts
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    Just to follow up on this,
    We (the company) decided to move forward with termination based on the fact that she is no longer able to perform the essential duties of her job or any other jobs we have available. I spoke with her today and we had this discussion, and she did not argue or seem upset. She has been terminated as of today. I also informed her that in the future, should she become able to perform the required and essential duties of the job, she is welcome to re-apply and providing we have a position available that she is qualified and capable of performing, we would consider her for rehire.

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